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Free Speech for All . . . Except Judges?

Free Speech for All . . . Except Judges?

 Last month, in one of the most closely-watched cases of the October 2014 Term, the U.S. Supreme Court held that States may prohibit judges and candidates for judicial office from personally soliciting campaign funds. The Court acknowledged that similar prohibitions against candidates for political office are untenable under the First Amendment. But “judges,” Chief Justice Roberts explained, “are not politicians, even when they come to the bench by way of the ballot.” And “a State’s interest in preserving public confidence in the integrity of its judiciary extends beyond its interest in preventing the appearance of corruption in legislative and executive elections.” Thus, the Court concluded, the First Amendment permits restrictions on speech in the judicial context that it would not countenance elsewhere.

As its caption reflects, the case of Williams-Yulee v. The Florida Bar arose from one State’s sanction against a single candidate for judicial office. But the decision has important implications for the rest of the country too. Trial or appellate judges are elected in the vast majority of the States (39 to be exact), including Tennessee. Thirty of those states have adopted restrictions like the one at issue in Williams-Yulee, based on the American Bar Association’s ban on the personal solicitation of campaign funds by candidates for judicial office. According to ABA President William C. Hubbard, the Court’s decision thus “reaffirms the [S]tates’ vital interest in safeguarding the fairness and integrity of our nation’s elected judges.”

But not all commentators agree, beginning with some members of the Court itself. Writing for the dissenting minority, Justice Scalia excoriated the majority opinion for “flatten[ing] one settled First Amendment principle after another” en route to upholding Florida’s restriction on speech. “As a general rule,” Justice Scalia noted, “the [S]tate has no power to ban speech on the basis of its content.” That principle “is not abridged for the benefit of the Brotherhood of the Robe.” Justice Kennedy wrote separately “to underscore the irony in the Court’s having concluded that the very First Amendment protections judges must enforce should be lessened when a judicial candidate’s own speech is at issue.” And Justice Alito remarked that Florida’s restriction “[wa]s about as narrowly tailored as a burlap bag.”

Some observers have classified the Court’s decision in Williams-Yulee as evidence that Chief Justice Roberts has transitioned “from one of the . . . Court’s stalwart conservative Justices to one of its most centrist and vacillating.” The Chief has sided with Justice Breyer more than with any other Justice. Others, musing on the Court’s oft-maligned 2010 decision in Citizens United v. FEC, consider Williams-Yuleea quite modest retreat from the . . . Court’s full support for the free and massive flow of money into American politics.” Regardless, there appears to be general consensus around the notion that the majority opinion in Williams-Yulee elevates public perception of the judiciary above other constitutional concerns. Whether this elevation is enlightened or imprudent remains to be seen.

Gadson William (Will) Perry

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